Labor Law

Colin Kaepernick has filed a labor grievance alleging the NFL has “colluded” to keep him from playing. His press release and the news accounts do not explain what his basis is for believing there is some on going collusion going. See NPR news report.

Having watched the NFL for most of my life, I know the owners are very independent, but sure, they are capable of agreeing on some things. But, it is a steep hill in trying to show collusion or conspiracy. He must show more than that one owner has discussed him and agreed he should not be signed by their respective teams. It is not enough that one owner says to another owner that Kaepernick is a problem. They must go further and say clearly they agree not to sign him to a contract. How would any player, much less someone with Mr. Kaepernick’s notoriety have access to that sort of inside discussion? My guess is he is simply frustrated at going one whole season and now into a second season without being signed by some team. NFL teams are always looking for another quarterback. Yet, he remains unsigned.

A quarterback’s skills are fungible. That youthful energy and ability diminishes over time. He must feel some pressure to get something going. But, as any judge will tell you, speculation is not enough.

The National Labor Relations Act provides that workers can form a union. The NLRA has been around since before World War II. Yet, we often forget that a major portion of the Act protects preliminary activity. Workers can discuss terms and conditions of their job. That sort of discussion can lead to the formation of a union. So, when Jerry Jones says he will not let a player play if he does not stand for the national anthem, he may be transgressing on the NLRA. Local 100 of the United Labor Unions has filed a claim with the National Labor Relations Board claiming his new policy violates the NLRA. See Bleacher report.

The NFL is a bit different from other industries. It is essentially entertainment. One might expect that an entertainment industry might have greater latitude in restricting employee conduct. But, that is just not likely. After all a strike itself would be very upsetting to fans and would certainly interfere with the business of the NFL. Yet, there is no doubt that a player has the right to strike. Flowing from that right to strike is the right to discuss terms and conditions of employment. That is what forming unions is all about. I am a veteran. I would always stand for the anthem. But, the NLRA is the NLRA. The law is the law. Respect for our laws is a duty for everyone, even NFL team owners.

The Fourth Court of Appeals denied the appeal of the City of San Antonio regarding its labor agreement with the San Antonio Firefighters Union. See San Antonio Express News report here. The City had argued that the evergreen clause in the Collective Bargaining Agreement made the contract an unconstitutional “debt.” This is the second time the city has lost on that issue before the Fourth Court of Appeals here in San Antonio. I mentioned the prior loss when the issue was the CBA with the San Antonio police officers. It is the same issue in both labor agreements, the “evergreen” clause that keeps the contract in place even while a new pact is being negotiated. See that prior post here.

As before, the City surely knows its chances for success increase dramatically when it appeals to the Texas Supreme Court.

T-Mobile has work rules including: 1) Maintain a positive work environment, 2) No arguing or fighting; respect co-workers, 3) no photography, or video or audio recording, and 4) no access to electronic information by non-approved persons. The National Labor Relations Board found these four rules to violate the National Labor Relations Act. The NLRA allows persons to organize a union. Precursors to organizing activity includes simple discussions between employees. So, rules that hinder employees communicating with each other are sometimes viewed as anti-union. The Fifth Circuit disagreed with the NLRB. It found that only the third rule about violated the NLRA. Applying a test that asks would this rule hinder the efforts of a “reasonable employee” to organize, the court found the rule regarding recording would chill organizing activity.

The court found that the very broadly stated rule would be interpreted by a reasonable employee to prohibit even mundane organizing activities such a photographing a wage schedule posted on a company bulletin board. T-Mobile defended the rule, saying it would protect the privacy of workers. But, said the court, the good intentions of a rule do not remove its harmful effects. The court did note in a foot note that certain photographs or recordings might not relate to organizing activity. But, as the rule is stated, the rule against all recording and photography would apply to activity which would clearly involve organizing activity.. See the decision in T-Mobile v. NLRB, No. 16-60497 *5th Cir. 7/25/2017) here.

So, in essence, the court might approve a rule that was more carefully worded. But, crafting a rule that protects privacy without involving possible forms of organizing activity would be very challenging. The court did not say it, but I think the judges must have wondered why not just have a rule that explicitly protects privacy? Why go though the mental gymnastics of a rule that tries to restrict photographs and recordings but dos not restrict forming a union? It sounds like the employer was possibly trying to squeeze in some anti-employee communication rules under the guise of protecting privacy of workers. After all, we all know employers would never try to hide harmful effects behind good intentions…..

Once Donald Trump assumes office, I expect we will have to re-visit many aspects of public life that we once took for granted. One of those aspects is the Hatch Axct. The Hatch Act was passed in 1939. It was passed to ensure that federal employees would not be forced to engage in political campaigns in order to remain employed. Once upon a time, federal employees were expected to assist candidates in their campaigns. The Hatch Act added a degree of professionalism to the federal workforce. Some jobs were classified as civil service and therefore, protected from political pressures. Other jobs were classified as political which meant they could be replaced whenever a new person was elected to office.

The incoming Trump administration has already asked the Energy Department for the names of persons who worked on behalf of climate change policies. The Trump folks also asked the State Department for information related to gender related staffing and funding. Tom Perez, the current head of the Labor Department, said those questions about Energy Department employees was illegal. See CBS News report. Mr. Perez did not explain what he believed to be illegal, but I am sure he was referring to the Hatch Act. The Hatch Act prohibits political activity by federal employees. The Hatch Act prevents federal employees from engaging in political campaigning. It also allows federal employees to vote their conscience, to contribute money to candidates of their choice, and to join political parties or clubs of their choice. See Office of Special Counsel handout on the Hatch Act and what activities are prohibited for federal employees here.

To the extent that the Trump folks are seeking to take action against or to target in some way federal employees who have expressed political views, then it violates the Hatch Act. And, that is before they have even assumed office. One can only wonder what will come after they assume office.

So, the system in which union dues are collected from all employees remains in place. By a tie, 4-4 vote, the U.S. Supreme Court fails to reach a consensus opinion. That means the lower court’s opinions stand. In this case, that means unions win because most lower courts upheld the long-standing custom of deducting union dues even from those persons who are not members. See CBS news report. These fees from non-members may not be used for political activity.

The system of collecting dues from non-members exists in the 23 states and the District of Columbia which allow public sector unions. The theory is that non-members would get a “free ride” if they paid nothing. The non-members would get the benefit of a collective bargaining agreement but pay nothing for it.

I belonged to a union a few years ago. We did sometimes refer to the non-members in a semi-friendly way as “free-loaders.” They were getting the benefit of concessions won by the union without paying anything to the union. Unfortunately for some, if Justice Scalia were still alive, he surely would have voted to abolish the fees. Indeed, he surely expressed his opposition to these fees before his death. But, under the internal rules of the U.S. Supreme Court, his opinion does not count if he is not around when the final decision is issued.

This result also indicates what happens when a seat on the Supreme Court remains unfilled. The business of the country just does not get done. A tremendous amount of work by many people goes into one appeal to the Supreme Court. All that work is for naught when the final tally is 4-4.

Sometimes, the San Antonio Express-News just does not get the story straight. In a story, entitled “Franchisees Fear a Chain of Ruin,” the report suggests the NLRB has made drastic changes to the law regarding joint employers. See San Antonio Express-Newsreport. The NLRB has done nothing like that. See my prior post about that recent decision in the Browning-Ferris Industries case here and here.

As I explained previously, the Browning-Ferris decision simply holds that in those unusual cases in which the franchisor takes a significant part in the running of the franchisee, then yes, they could be viewed as joint employers. The evidence must indicate an unusual relationship in which the franchisor takes steps to control the employees of the franchisee. That should not happen often. The sky has not fallen.

The sky could fall, yes. The NLRB could find in the pending McDonald’s case that the franchisor is a joint employer even if there is no evidence that Big McDonald’s gets involved in employment decisions by the franchisees. But, that is not likely.

The real problem with the Express-News report is it lacks balance. It quotes two defense lawyers, both from the law firm, Ogletree Deakins. The report cites to no plaintiff or employee oriented lawyers. It does not cite to or refer to any NLRB lawyers. The news outlet apparently did not seek an adverse opinion in an area of law that is generally rather adverse.

Like a story on the Spurs-Warriors game, if the reporter does not talk to any of the players on the Golden State Warriors, the story would just not be complete…..

McDonald’s hamburger chain is facing the first test of a new approach to franchise workers. The new approach started with a NLRB decision last Summer that found in certain cases, the parent franchisor could be responsible for employment decisions made by the franchisee. See my comment about that decision here.

The McDonald’s case started when some McDonald’s workers walked off the job to rally for higher wages. The NLRB received many complaints after workers suffered reprisal for their labor activity. The NLRB will hold hearings about McDonald’s workers in New York City and later in Chicago and Los Angeles. The NLRB has not explained why it believes this is a joint employer situation. But, lawyers representing individual claimants point to the larger corporation monitoring and deciding working conditions of workers. See Chicago Tribunereport.

If that is all the evidence the NLRB has, that may not be enough. In the BFI Industries case that established this new standard, there was more evidence of control by the larger corporation. That case concerned a supposed independent contractor, Leadpoint, and a client employer. BFI was the larger, client employer. In that case, BFI had an agreement with Leadpoint that in effect allowed BFI to “codetermine” employment decisions. Leadpoint conducted its operations on BFI property surrounded by BFI personnel. BFI set the conditions of work that determined which Leadpoint workers would stay and who would be fired. Under the agreement, BFI retained authority to “discontinue” any of Leadpoint’s employees. There were two instances in which BFI did indeed discontinue two Leadpoint workers. See my prior post about that decision.

Joint employer under the BFI decision does not mean franchisees and franchisors are automatically joint employers. First, there must e evidence that the parent or larger corporation actually exercises some control over employees of the franchisee. As they teach us in first year of law school, its all about the evidence.

Yesterday, the U.S. Supreme Court heard oral arguments in a challenge to the long accepted rule that when public sector unions negotiate, they negotiate on behalf of all employees, not just those who are members. A person can work at a union work place, but not be a member of the union. If a worker chooses not to join the union, however, s/he still pays a fee to the union. A Teacher in California, Rebecca Friedrichs, filed the lawsuit over some $650 deducted from her pay per year for the union fee. Actual members pay about $1,000 per year. The theory, as explained in the 1977 case, Abood v. Detroit Board of Education, 431 U.S. 209 (1977), is that “free-loaders,” those who receive the benefits, should pay some of the load. See the Abood decision here.

The difficulty for some workers is that the election to form a union might occur decades before a particular worker starts work. Ms. Frieedrichs probably became a teacher decades after the California schools were first unionized. She has no memory of an election, much less losing the election. So, she must feel, why should she have to pay for something that she had no hand in, especially when that union takes stands on issues with which she disagrees?

Her lawsuit targets not the lobbying or political contributions, but the simple fact of the union’s existence. The reduced fee is supposed to account for the political actions of the union. Her $650 does not go toward lobbying. Her lawsuit is more specific. It attacks the fact of the union itself. She argues that the union’s mere existence is political.

The Abood decision rests on contract principles, that an employer should not have to negotiate with more than one entity. If every non-member negotiated his/her own salary and conditions, the employer would be in constant negotiations over some issue. And, said the 1977 court, negotiations, resolving grievances, etc. all requires time and money. The unions need income to survive and to process grievances. Concluded the majority decision, a member or non-member cannot withdraw his/her financial support just because she disagrees with the strategy for that group. So long as the group leader (i.e., union leaders) press forward on issues generally applicable to all members, then the purpose of the National Labor Relations Act is still served.

But, in the past few years, in dissents, Justice Alito has hinted to labor union opponents that the court would re-consider its decision in Abood. So, now we have this appeal. Some observers would call Justice Alito’s hints judicial activism. But, a true conservative would never engage in judicial activism, would he?

Well, the National Labor Relations Board (NLRB) has reversed the regional director in Chicago who had ruled that Northwestern University football players could form a union. The ruling from the national level found, instead that allowing union organizing could lead to imbalances in competitive football. See CBS news report. The ruling did not address the Chicago regional director’s finding that the players were employees for purposes of the National Labor Relations Act.

I previously wrote about this issue here and here. The unanimous five-member board in Washington, D.C. found that allowing the players to organize could lead to different standards at different schools. The national ruling cited federal caselaw that promotes stability and uniformity between management and workers.

Sure, but sooner or later, the schools will have to recognize these players are more employees than students. The movement is toward greater and greater renumeration for the players, not less.